Love v. State

428 S.C. 231

834 S.E.2d 196

Korey Lamar LOVE, Petitioner,

v.STATE of South Carolina, Respondent.

Appellate Case No. 2016-002233

Opinion No. 27921

Supreme Court of South Carolina.

Submitted May 15, 2019

Filed October 2, 2019

E. Charles Grose Jr., of Grose Law Firm, of Greenwood, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant Attorney General Lindsey Ann McCallister, both of Columbia, for Respondent.

JUSTICE JAMES :

In this post-conviction relief (PCR) matter, Korey Lamar Love moved at the outset of his PCR hearing to amend his application for relief to add four additional grounds of ineffective assistance of counsel. This appeal centers upon only one of those additional grounds, specifically that trial counsel was ineffective for failing to object to a portion of the State's closing argument. The State objected to the amendments, and the PCR court denied Love's motion to amend, finding the State would be unfairly prejudiced by allowing Love to amend his PCR application upon such short notice. We granted Love a writ of certiorari to address whether the PCR court erred by not allowing him to amend his application to add the ground concerning the State's closing argument. We reverse the PCR court's denial of Love's motion to amend to add that one ground, and we remand this matter to the PCR court and instruct the PCR court to consider the merits of this additional ground.

FACTUAL AND PROCEDURAL HISTORY

On January 27, 2007, at approximately 1:30 a.m., Isaac Bass (Victim) completed his shift at the Greenville Wendy's on Pleasantburg Drive and exited the restaurant through the self-locking back door. Victim was immediately confronted by an armed assailant, who attempted to rob Victim. Victim called for help, and a struggle ensued. Victim broke free from the assailant and attempted to run away; however, the assailant shot Victim in the neck. The assailant and a cohort fled the scene. Victim got to his feet, walked around the side of the Wendy's, and banged on the drive-thru window. Because he was shot in the neck, Victim was unable to call for help. Victim made his way towards the street and flagged down a passing vehicle. The driver saw Victim on the side of the road and observed two men sprinting away from the Wendy's. The driver stopped to provide Victim assistance; however, Victim did not survive.

Because there was no physical evidence linking the case to any suspect, the case went unsolved for a few years. In 2010, Detective Collis Flavell was assigned to the case. Detective Flavell informed Victim's parents he was working the case, and the community soon became involved in raising reward money and asking people to come forward with information. As a result of these efforts, Detective Flavell received a tip suggesting law enforcement investigate certain members of the Love family.

Following an investigation, Korey Love was arrested and indicted for murder, attempted armed robbery, possession of a weapon during the commission of a violent crime, and possession of a pistol by a person under the age of eighteen. At trial, the State's case was built upon the testimony of several people who explained Love's involvement in Victim's murder. During the State's closing argument, the State told the jury:

This is your opportunity to do justice in this case under the oath that you have taken. You can be instruments of justice for [Victim]. His death was not the final chapter of his life, this trial is the final chapter of his life.

Trial counsel did not object to this comment. The jury found Love guilty as indicted. The trial court sentenced Love to concurrent prison terms of fifty years for murder, twenty years for attempted armed robbery, five years for possession of a weapon during the commission of a violent crime, and five years for possession of a pistol by a person under the age of eighteen. The court of appeals dismissed Love's direct appeal following Anders¹ briefing. State v. Love , Op. No. 2014-UP-177, 2014 WL 2721671 (S.C. Ct. App. filed Apr. 23, 2014).

Love filed an application for PCR on April 8, 2015, claiming ineffective assistance of both trial and appellate counsel. A PCR hearing was held on February 17, 2016. As the hearing commenced, Love moved to amend his application to add four additional grounds of ineffective assistance of counsel. The following exchange took place:

Love: I have an amended application that I would like to hand up. It adds some matters that were on the record but not included in the original application.

The State: Your Honor, we would object to that. Again, this case has been scheduled for more than a month. I was handed the amendments this morning.

Love: I've marked this as Applicant's Exhibit Number 4, at least as a proffer, and I move to be allowed to amend under the liberal rules of ... civil procedure that allow amendments, even amendments during and after the trial in a civil case.

PCR Court: [Assistant Attorney General], have you seen the amended application?

The State: About 20 minutes ago for the first time. Yes, Your Honor. I mean, there's no reason this couldn't have been emailed to me at any point prior to this morning. I mean, this is not a surprise. The roster goes out a month in advance. [PCR counsel] and I discussed before I put the roster out the fact that this case would be held in February. This is not a surprise to anybody.

The fact that I'm being hit with affidavits and phantom letters and amendments the day of the hearing, if I did this to opposing counsel, there would be hell to pay. I do not believe that we should be made to go forward on amendments that clearly could have been filed prior to this morning, Your Honor.

PCR Court: Yeah. I'm not going to allow -- I'm not going to allow the amended application to be considered for purposes of today when here, at the moment of trial, the moment of hearing -- or 20 minutes prior is when the [Assistant] Attorney General just received that and has not had an opportunity to respond. And so I'm not going to allow the amended application to be part of this hearing. All right. What's next?

Love: That's it. I just would -- at the time I would proffer testimony or proffer parts of the record that relate to the amendment so I can appeal that ruling, Your Honor.

PCR Court: All right. I'll leave that in your court.

Because the PCR court denied Love's motion to amend, the testimony primarily focused on the original grounds of ineffective assistance of counsel and not those contained in the amended application. As part of the proffer noted in the above exchange, Love questioned trial counsel about his failure to object to an alleged Golden Rule argument made during the State's closing:

Now, in that same paragraph that we're looking at, the [State] makes a statement about this is your opportunity to do justice in this case under the oath that you've taken. You can be an instrument of justice for [Victim]. His death was not the final chapter of his life. This trial is the final chapter of his life. You didn't object to that statement, did you?

Trial counsel agreed he did not object to this portion of the State's closing argument. There was no other discussion of this issue during the hearing. At the close of his case-in-chief, Love moved to amend his application to conform to the evidence presented during the hearing. The PCR court denied the motion. Love renewed his motion to amend after the State rested, and the PCR court again denied the motion.

The PCR court denied Love's application for relief in a written order. Of course, the order did not address the merits of the issues Love raised in his amended application, but as to the proposed amendments, the order provided, "[Love] requested to amend the PCR application. [The PCR court] denied the motion, finding the late amendment did not provide adequate notice to opposing counsel." The PCR court also denied Love's motion to conform the pleadings to the evidence presented at the end of the hearing. Love filed a Rule 59(e), SCRCP motion requesting the PCR court to reconsider its denial of relief and to consider the merits of his amended grounds. The PCR court denied the motion. We granted Love's petition for a writ of certiorari to consider the single issue of whether the PCR court erred in refusing to allow the proposed amendment concerning the State's closing argument. We denied the petition as to Love's eight other issues.

DISCUSSION

"On review of a PCR court's resolution of procedural questions arising under the [Uniform] Post-Conviction Procedure Act or the South Carolina Rules of Civil Procedure, we apply an abuse of discretion standard." Mangal v. State , 421 S.C. 85, 92, 805 S.E.2d 568, 571 (2017). The procedures for applying for PCR are outlined in the Uniform Post-Conviction Procedure Act (the PCR Act). See S.C. Code Ann. §§ 17-27-10 to -160 (2014). "An application for relief filed pursuant to [the PCR Act] must be filed within one year after the entry of a judgment of conviction or within one year after the sending of the remittitur to the lower court from an appeal or the filing of the final decision upon an appeal, whichever is later." S.C. Code Ann. § 17-27-45(A) (2014). "All grounds for relief available to an applicant under [the PCR Act] must be raised in his original, supplemental or amended application." S.C. Code Ann. § 17-27-90 (2014). Because applicants are traditionally entitled to only one "bite at the apple," it is imperative that applicants raise all known issues in their original, supplemental, or amended applications. "At any time prior to entry of judgment the court may, when appropriate, issue orders for amendment of the application or any pleading or motion ...." S.C. Code Ann. § 17-27-70(a) (2014).

The South Carolina Rules of Civil Procedure apply in a PCR action to the extent the rules do not conflict with the PCR Act. See Rule 71.1(a), SCRCP. Rule 15(a), SCRCP, provides, "A party may amend his pleading once as a matter of course at any time before...